anotherlongshot (anotherlongshot) wrote,

Thoughts on the Law

Steven Wise of the Nonhuman Rights Project gave a talk at the faculty today as part of the Talking Animals, Law and Philosophy series that Raffael organises. I usually go for these talks because I am a supportive friend and supportive of the cause; but I don't usually leave feeling as if I had missed an opportunity to do something meaningful with my law degree instead of hiding in theories about what the law should be. To put it in another way, my interest in normative questions of law is not immediately or exclusively academic; it is what lawyers do, at least sometimes, when they go to court -- and it is certainly what Steven Wise and his team do when they bring common law habeas corpus actions on behalf of chimpanzees, etc.

Three things came to my mind. First, a lingering nostalgia for litigation that, of course, always conveniently forgets how much I had hated the stress and the long hours, for it is easy to miss something when all you're hearing about is the exciting, intellectually stimulating parts. The strategising, the tactics, the creative legal arguments; but these constituted maybe 20%, a generous estimate, of my daily grind as a litigator.

But then, and second, perhaps it would have felt less painful if I had done something meaningful -- that is, if I had had the courage of my conviction and done criminal law like I had wanted to when I went to law school. This is utterly unoriginal, but I cited Atticus Finch as an inspiration and as the archetypal lawyer, the sort that I had wanted to be. None of that happened. Instead, I was a Big 4 lawyer doing boring Big 4 commercial cases that sucked my soul dry and had nothing to do with the ideals that I had harboured when I went to law school. For even though it was not a well thought out decision, even though my first love was and will always be literature, even though I have not stopped regretting, partially, going to law school, I did have a strong sense of justice, of right and wrong, and I believed in the law as an embodiment of what is right. I believed, too, in the injustice of Singapore's criminal legal system (at least, the way it was back then; things have changed somewhat since) and I'd wanted to defend prima facie criminals against a system that was inherently stacked against them. That was the sort of lawyer that I'd thought that I would be. Instead of sticking to these ideals, I was seduced by the glamour and prestige of the Big 4 firm and settled for the worse version of the lawyer that I'd wanted to be. Of course, I might have burned out at some point if I had become a criminal lawyer. I might have completely hated it or become even more disillusioned with the system and quit, for I am not made of the sterner stuff necessary to deal with losses in cases that I strongly believe should succeed. Be that as it may, it was a path that I had wanted to pursue, but never did because I took the easy way out and went to a Big 4 firm, and so it is a 'what if' that will probably haunt me for the rest of my life.

The point, however, is this: the talk reminded me of these ideals and my then-belief in the law as the embodiment of what is right. In fact, I necessarily still believe this if my PhD is about what constitutional rights in Singapore should be like, and if I am convinced in the unjustness of section 377A of the Penal Code (because it embodies a wrong). But there's a difference writing academic papers about what the law should be, which only 5 people in the world will read, and arguing before the court what the law should be. You can do the former from the comforts of your ivory tower, and I hope that you'd hope that it has some impact, but its real-world consequences is not the primary concern. But the latter is all about real-life consequences. It is about the difference between a chimpanzee living in a cage and living in a sanctuary with open spaces. It actually makes an impact, or has the potential to make an impact. Of course, the academic stuff is fed into the process when the people making the process happen read the academic stuff and use the arguments (among other things); but that is, once again, a secondary consequence which isn't usually the academic's primary purpose (though there are exceptions).

Having said all that, and third: to repeat, I am simply not made of the sterner stuff necessary to deal with defeats after defeats when I believe in the rightness of my case. Wise said that the point of litigation is not to score an immediate victory, which would be unrealistic to expect anyway, but to go on appeal and put in motion the initial pieces of the puzzle which will eventually become a clear picture when the contingent conditions are in place for this momentous change to occur. So before scoring a major victory, people like Wise must necessarily harden themselves to the crushing blow of defeat -- and I'm simply not the kind of person who can handle it. It rattles my faith not only in the humanity of human beings (which is already in short supply to begin with), but also in the law as an embodiment of what is right. Law is supposed to be insulated from politics; it is supposed to be above politics. I presuppose, of course, an ephemeral, constant standard of rightness that transcends vulgar popular morality dictated by the vagaries of irrational human prejudice; and I presuppose, too, that this standard of rightness is what the law embodies (or should embody). But how naive, how unrealistic, how blindly idealistic. The law is made by humans. It is moral only to the extent that we are cognitively aware of what morality requires at a particular point in time. Its connection to morality is contingent and therefore fragile. I used to think that immoral laws were not laws; that judges who declared them constitutional were simply unaware of the moral principles that should have guided their decisions; and that the real law was floating somewhere in the ether, waiting to be declared. For want of a better way to phrase it, what kind of bullshit is that? It makes no sense to say that 377A isn't law because it clearly is. The only thing that could be said about its status as law is that it shouldn't be law -- but this is clearly an admittance of its status as law.

But perhaps the disillusion exists in the gap between law as it is and law as an ideal. I believed, and still believe, in the law as an ideal that embodies what is right. But the law as it is often falls short. And it falls short in important ways, in a manner that subverts law as an ideal and metes out or perpetuates injustices that ought to be odious to it. And I know that I cannot handle facing the practical consequences of when law falls short.


Anyway. I'm not sure how much sense this made. I am too tired to think clearly, so I will leave it at that.
Tags: law, philosophy
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